A British judge has dismissed a case against a South Australian man who is wanted in Germany for Holocaust denial. Fredrick Toben was arrested at Heathrow airport earlier this month while he was in transit from America to Dubai. He is wanted in Germany on charges that he is a Holocaust denier, after his Adelaide Institute website published claims that there was no mass murder of Jews by the Nazis.

Iranian President Mahmoud Ahmadinejad has recently described the Holocaust as a “myth” He has stated:

“They(Israel) have invented a myth that Jews were massacred and place this above God, religions and the prophets,”

The ugly face of Holocaust Denial is still smiling across the globe over 63 years after the last concentration camp was liberated at the end of World War II. It has become especially virulent in the area of social media where anonymity protects deniers like a white sheet. Facebook is a prime example. According to this article which initially brought my attention to this issue, the following groups promoting Holocaust Denial are currently active on Facebook (as of the writing of this article).

Holocaust Denial is not against the law in the United States. In this country those who believe the Holocaust never occurred or has been over-stated have the public and private rights to their opinions in all media forums including social media. Or do they? As we traverse the social media universe stopping at, bulletin boards, Myspace, Digg and Facebook and YouTube we are bombarded with unpopular opinions. Opinions on subjects such as the Holocaust that fly in the face of all accepted historical research. Social sites such as Facebook certainly have the right to allow diverse points of view on these politically and historically sensitive issues. Facebook also has Terms Of Service(TOS) that dictate the limitations on such content. Facebook’s TOS contains the following limitation on the types of content that may not be posted on its site:

“upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law.”

This is an important TOS as it relates to Holocaust Denial because Holocaust Denial does not enjoy the same protection in other countries that it does in the United States. The advocation of Holocaust Denial is a crime in the following countries: Austria, Belgium, Czech Republic, France, Germany, Lithuania, Poland, Romania, Israel, Slovakia and Switzerland. Of those countries, Facebook has an active presence by way of a localized platform in Germany. Do the existence of Facebook groups that advocate beliefs that are crimes in other countries violate Facebook TOS? Seems to be a straightforward question that Facebook representatives are capable of answering. Here is the argument for removal of Holocaust Denial groups:

Holocaust Denial is a crime in Germany as well as many other countries. Facebook has an independent presence in Germany. Facebook TOS would seem to prohibit content that violates the laws of the countries Facebook has a presence in. Much of this of course depends on how the words “local”, “state”, “national” and “international law” are defined. I do not believe the definition of “international law” would trigger Facebook TOS. It however could be argued that the words “local”, “state” and “national” have defenition implications beyond the borders of the United States. These words are not defined in the Facebook TOS.

I sent Facebook the following email which was a followup to a previous email exchange about copyright issues:

Saturday, October 25, 2008 11:13 AM

From:

“Brian Cuban” <brian.cuban@dallasmavs.co

To:

“Alex Wu” <awu@facebook.com>

Alex:

The article I am writing is regarding Facebook TOS and Facebook Groups that support Holocaust Denial. You may or may not know that Holocaust Denial is a crime in many European countries including countries where Facebook seeks to establish a presence such as Germany. Facebook TOS specifically prohibit such groups from:

“upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law.”

Is there anyone at Facebook I can ask for a comment on why these groups are permitted and/or do not violate Facebook TOS before I write the article?

Sincerely,

Brian Cuban

To date I have received no response to my email from anyone at Facebook. No action of any kind has been taken even if that action would be to simply explain the Facebook TOS to me and how it applies to such groups. There appears to be a humorous irony in Facebook’s discretionary enforcement of its TOS. Upload a copyrighted video. Remove it or you are gone. Post someone’s Facebook profile on a blog. You are gone. Deny the Holocaust. Have a field day. It reminds me of a quote that is often seen in the context of the Holocaust:

All that’s necessary for the forces of evil to win in the world is for enough good men to do nothing”

Buyer Beware…New Millenium version. At its core is the spread of information that one must filter into usable intelligence or worthless drivel. Same as the good ol’ days when Tommy claimed Johnny was a fink behind the old red school building…

In my experienced, even if you were to succeed in getting the deniers removed, it would do little to diminish their motivation to spread their message. One advantage of being in the public eye (Facebook, etc) is that it can also be combatted in the public’s eye with accurate holocaust information. Once they go underground, those groups would be harder to track, supress and, you know, ENLIGHTEN.

Those TOS are impossible to universally enforce. Take your desired result (that they enforce the TOS strictly by taking account the speech limitation laws of other countries) to it’s logical extreme and they would be in the position of prohibiting negative comments about the prophet Mohammed, the Saudi Royal Family, Kim Jong Il, and the Chinise heads of state. They would also have to prohibit proselytizing, admiration of the Dalai Lama, and the advocacy for human rights and democratic elections.

I think their in-house lawyers are really only worried about the postings that are likely to result in actual damages (e.g. intellectual property right damages, actionable defamation damages, damages resulting from terroristic threats,etc). Also, I bet that they are more worried about breaking U.S. law and the laws of Ireland, the site of their international HQ offices than they are about breaking the laws of other countries.

Lastly, I think you are barking up the wrong tree with your inquiry. The more interesting questions that ought to be asked are: Why is the British government refusing to enforce a German arrest warrant? Is Germany any different that China and Syria in their zeal for criminalizing unpopular ideas? Isn’t it a basic human right to be able to say anything (except fire in a threatre) even if that utterance is offensive to thin skinned bloggers?

If I remember correctly, Syria, Iran, and China have blocked its citizens’ access to Facebook. Germany can certainly do the same thing if it so chooses. instead it is trying to force its twisted doctrine of limited speech rights on countries with a more liberal approach.

Every single member of said groups shows their ignorance & stupidity on a public forum. The legal matter always falls back on the fact they are a private entity. Regardless a non-reply on Facebook’s part is unprofessional, and unfortunately such deniers exist with or without FB.

People are getting caught up in the 1st Amendment. This is a TOS issue. I would like FB to explain how the fact that HD is a crime in Germany where they have a platorm plays into outlined TOS provision.

The holocaust happened, the numbers are probably just a guesstimate and could be inflated. But it did happen, but I think your raising too big a stink about this. There’s tons of racism on the Internet look up a racial swear and you’ll see all sorts of disgusting sites about this.

The most prominent are ones against blacks, jews, and arabs/muslims. I’m saddened that many who stand up for one, turn a blind eye to the other. If you are against racism to blacks, you should stand up against racim to jews. If you stand up against racism to jews, you should stand up against racism to arabs/muslims. To stand up for one, but not the others – is to let them all down. Racism happens, Facebook is not responsible. Blame the actual users.

Are they saying bad stuff about Jews? If they are then yea do something about it. Moderate the discussion, censor them, ban users that are distributing hate. But if they aren’t then leave them be, so long as they aren’t hurting anyone by spreading hate – it really shouldn’t matter.

I’m kinda alarmed by the presence of Israeli lobby groups like the JIDF, why aren’t they going after forums like Rainbow Six – which has been a well known source of racism against Asians and Arabs. Why are they only looking out for Israel, why don’t they speak out against other acts of racism and hatred in the world and media. Stop defending your own self-interests and start defending the good of the public, the good of the world – crush racism all together, not just stop it for a select group and perpetuate it towards others.

I have strong sentiments against Lobby groups, of all kinds, they tend to be self-serving and not in the interests of the people. Their presence here is unwelcome, at least to me as a reader. It would be nice Mr Cuban if you could give us some disclosure on your own beliefs and what side you take with respect to this, I’m assuming your pro-Israel, which is fine, but will you be so brave to stand up for the other sides who face racism as well – a post perhaps on the face of racism towards Middle Easterners and Muslims, Asians, Blacks?

“People are getting caught up in the 1st Amendment. This is a TOS issue. I would like FB to explain how the fact that HD is a crime in Germany where they have a platorm plays into outlined TOS provision.”

You’re using the TOS as an *excuse* to make a big stink out of this. You obviously disagree with what these people are saying, and you believe they should be prevented from saying it. You could make an argument that “these laws exist in these other countries because holocaust denial causes legitimate problems there that supersede freedom of speech,” but that’s not what you’re saying. You’re saying “I disagree with these people, and there is a circumstance under which they could conceivably be prevented from saying it so I will press the issue because I think these people are stupid. The TOS is an *excuse* for you to moan about others exercising their freedom of speech. Everyone can see through this, so just STFU.

Should it be illegal to spread lies regardless of the sensitivity of the topic? The US says no but Germany says yes in this case.

Seems the US founders understood something that the Germans seem to have missed. The only effective way to confront lies is with truth, not with making lying illegal.

It’s the same problem I have with hate speech laws. The idea is noble and in theory I’m for it: Prevent the inciting of physical violence against an unpopular minority. Trouble is it too easily evolves from “speech that incites violence” into “speech that we in power don’t like.”

Make the violence illegal. Punish it severely and swiftly.

But allow the stupid people to spew their lies and hate. Counter it with truth and love. That’s a far more effective system.

Are you also going to delete the comment by the JIDF? I am dissapointed. You failed to disclose the obvious and main source of your article. You have jeopardized your credibility and reputation by writing an article that it is entirely the authorship of another individual. This is unethical and you owe an apology to your readers for such disregard and transgression. I feel violated and cheated. I noticed that a member of the JIDF has become aware, however this person has not strongly demanded accountability. It is up to you to apologize.

I don’t care if I got the idea from the Unabomber’s web site.(if he had one) I do not worry about where the issue is posted. I evaluate the merits of the issue itself and whether it is something I am interested in writing about. My approach would be no different if the exact some material appeared on your blog. It is called commentary. Look it up

This issue still needs to be addressed, the denials have gone on for years. It is just the same old same old jew hating conspiracy by many who love to say the holocaust never happened. Just sick and sad. In the early 40's, my grandparents saved countless jewish faithed people from the Nazi's by hiding them in thier basement, my grandfather was the Mayor of Heeswijk, Dinther, The Netherlands and so he could get away with it. Good deeds done many years ago, he would turn in his grave if he read some of the posts above. Denial that it never happened, come on.